For that. Brief comments about Justice Breyer cant begin to do justice to him, so im going to have to be unjust in light of time constraints that im subject to. Justice breyer has always been remarkably generous with his time in supporting society projects. And indeed, in less than two weeks on june 6th, at our annual meeting, hell be delivering the societys 41st annual lecture. And of course, hes doing these extra projects for the society at a tremendously busy time for him and for all of his colleagues on the court. So Justice Breyer, thank you so much. Some background on Justice Breyer. He was born in san francisco. He eventually, after stanford, came east. Farther east. Hes got a ba from Magdalene College at oxford. He earned his law degree at harvard. He went on to clerk for Justice Arthur goldberg this court. He served with great distinction in the justice department. He served as chief counsel to the Senate Judiciary committee at one point and served in other similar roles during that period of his career. He has taught at harvard law school, at the Harvard Kennedy school of government, at the college of law in sydney, australia, and at the university of rome. In 1980, president carter appointed Justice Breyer to the United States court of appeals for the first circuit, and he was the chief judge there from 1990 to 1994. And then in 1994, president clinton nominated him as an associate justice of the Supreme Court to succeed justice blackman. He took his seat on august 3rd, 1994. He has also been a prolific writer, not just of judicial opinions. Many books, wonderful articles, on a very wide range of important legal subjects, both domestic and international. His most recent book, according to the world, was published last september. In a nutshell, in mew view, and im sure that you will agree with me, Justice Breyers career is powerful evidence of the enduring contributions that a single individual can make to society when he or she is blessed with a keen intellect and an innate sense of decency, a dedication to the rule of law, and a determination to make our country and our world a better place. It is my great honor and privilege to present Justice Breyer to you now. [ applause ] thats a nice introduction. Youre going to hear what you would like to hear, which is about lochner, and im very happy to be here and introduce you. Im glad youre all here. And i do want to say that the society, it does a terrifically good job. Its job is basically to tell its members and i hope most of you are members, and people who arent members, and judges in our court, and everybody else in the world something about the history of the court and something about what we do. And thats a very, very useful thing. I cannot tell you how often i talk to audiences, i love to talk to School Children particularly. I have to get them interested. I have to explain what we do. And by and large, they dont know. So thank you for what you do. You have teacher training programs. You train High School Civics teachers. You release histories like the federal courts, an essential history, and you sponsor these lectures like the leon silverman lecture. And leon used to get very long introductions to the introducer, too. I remember that. Leon was terrific, and im so glad they named this lecture series after him. This is a series called theres four parts. This is part two. Its the four parts are on the court and the progressive era. Now, tonights event is a panel discussion. The panelists are Randy Barnett and paul kens and victoria nourse. The three of you will discuss. Who are these people, as you probably know, paul kens is a professor of Political Science at texas state university. He frequently writes on subjects involving legal history, constitutional history, the history of law in the american rest. Hes written many books including lochner v. New york, economic regulation on trial. Justice steven fields, he was from california, and he had a very colorful career, shaping liberty from the gold rush to the gilded age. Thats steven field. And the Supreme Court under chief Justice Morrison r. Waite from 1874 to 1888. Randy barnett is the professor of legal theory at the Georgetown University law center. He teaches constitutional law and contracts. Hes director of the Georgetown Center for the constitution. Hes published many, many things. His most recent book is our republican constitution, securing the liberty and sovereignty of we the people. Hes also written restoring the lost constitution, the presumption of liberty and the structure of liberty, justice, and the rule of law. Now, between the two is our moderator, professor victoria nourse. Shes a professor of law at the Georgetown University law center. Shes the author of in reckless hands, skinner v. Oklahoma, and the near triumph of american eugenics and a forthcoming book, misreading law, misreading democracy. This panel is perfect to discuss this issue, so please join me in welcoming professors kens, barnett, and nourse. [ applause ] well, on behalf of the panel, thank you very much, Justice Breyer, for that wonderful introduction, and i am delighted to be here. Hopefully im one of the last moderates in washington to moderate a debate between two of the most distinguished lochner scholars in the country. If you have seen the earlier cspan performance, you will find it entrancing about the facts of the progressive era, the nature of the case, how Teddy Roosevelt made the bake shop case famous. But you wont hear much about the key legal concepts that drove the case and differ in many respects from our current constitutional law. So i hope today, having written a bit myself about lochner in the course of my book on skinner, that we will hear from these distinguished scholars something about these concepts, and they include the very notion of right, of substantive due process, the presumption of liberty, and a somewhat forgotten concept called class legislation. Im going to give the honors at first to professor kens, as we discussed on the phone earlier, for ten minutes, then professor barnett for ten minutes, then i will attempt to intervene if i get a word in edgewise, to guide the conversation on some of these interesting concepts. Over to professor kens. Thank you, victoria. And i want to thank Justice Breyer for his kind introduction, and thank the Historical Society for inviting me to participate. I appreciate the opportunity to take part in this conversation about lochner v. New york. A case that to put it mildly has not enjoyed a very good reputation. Chicago law professor david a. Strauss best captured the lochner legacy with a simple question. Who would ever cite this case in a Supreme Court brief except to identify it with your opponents position . Its safe to say that a majority of lawyers, constitutional scholars, and judges from all sides of the political and economic spectrum rank lochner along with dred scott as one of the worst decisions in constitutional history. Of course, there are some prominent and distinguished exceptions. I suspect randy will attempt to convince you that the lochner case does not deserve its reputation. I am here because i think it does. However, there are many things upon which randy and i do agree. One is that we both agree and recognize the importance of liberty in our political system and our constitutional tradition. So in the spirit of starting our conversation, i would like to focus on the meaning of liberty. Not from my own perspective but from observations of what liberty meant to most people in the 19th and early 20th centuries. Lochner is famous or infamous for Justice Peckhams use of the doctrine of liberty of contract to overturn a law limiting the hours of bakers to ten hours a day or 60 hours a week. Even though liberty of contract is not among the rights expressed in the constitution, peckham concluded that the general right to make a contract including the right to purchase and sell labor, was part of the liberty of the individual protected by the 14th amendment. It was peckhams use of liberty of contract that overturned the shorter hours law that caused Justice Holmes to criticize the majority opinion as being based on laissezfaire economic theory instead of the constitution. And it later inspired reformers like Theodore Roosevelt to charge that the court had created an insurmountable barrier to reform. The curious thing is that the lochner case actually had nothing to do with liberty of contract in any meaningful sense. In its most fundamental character, a contract is a voluntary agreement between two people. It involves some degree of meeting of the minds and dealing at arms length. Those conditions were clearly not present in employer Employee Relations in the newly industrialized economy of the turn of the 20th century. The actual target of this law that was overturned in lochner was the conditions of labors in new yorks cellar bakeries. These were typical of many of the wageearning jobs of that era. Working conditions in these bakeries were atrocious. Located in tenement basements, these bakeries were damp, dark, filthy, and they had ceilings as low as five and a half feet high. Poor ventilation caused them to be stifling hot when the ovens were on. And the bakers work involved heavy lifting, and their pay was low compared to other jobs. Its important to understand that the workers were typically paid by the day or by the week. And the number of hours that a person worked was unilaterally determined by the employer. The bakers main complaint was the number of hours they were required to work. By 1895, when the bake shop law was passed, 74 hours was typical and many bakers worked more than 100 hours a week. Why in the world would anyone in their right mind agree to work in such terrible conditions for so many hours and so little pay . The answer is that the economic circumstances gave them no choice. As one advocate of the shorter Hours Movement put it, an empty stomach can make no contract. The doctrine of liberty of contract has applied in the lochner case guaranteed little to workers. At the time, besides what might better be described as the right to indenture ones self for the day or for the week. Now, if lochner if the doctrine of liberty of contract that raises the question, if lochner was not about liberty of contract, what was it about . The answer is that it was part of a more sweeping history. That history held that the constitution implied a right to businesses and individuals to be free from government regulation. This theory was revolutionary. And it was controversial. Because it ran contrary to the traditional american views of the relationship between Property Rights and the duty of the state to regulate in the public interest. It did not originate with lochner, but lochner came to symbolize the courts acceptance of it. The right to be free from government regulation is not expressly guaranteed in the constitution. Therefore, any argument in favor of it depends on the claim that it is a dominant characteristic of our constitutional tradition. Since the 1980s, many legal historians have attempted to do just that. They have maintained that as an expression of a longstanding american tradition of limited government, reflected in jacksonian democracies distrust of government, the theory of free labor, or an aversion to class legislation. While there is some truth to these observations, a closer look at history demonstration thats when it came to regulation of business, the tradition of limited government existed more in theory than it did in practice. States routinely regulated the economy, licensing, building, and regulating public markets, controlling the quantity, quality, and the price of common goods, even the condition of employment, which was then called the law of master and servant. Are common examples of the state regulating the economy in the public interest. There may be a tradition of limited government in american theory, but the prevalence of such a wide range of regulations demonstrates that another tradition actually predominated daily life. That tradition was expressed in terms of the states duty to use its authority described as the police power, to protect the rights of the people or the rights of the community, and it was rooted in an american ideal that links liberty with popular sovereignty and democracy. In the tradition wasnt just predominant in daily life but also in constitutional doctrine. An early example is chief justi justice tawneys majority opinion. The object of all government is to promote the happiness and prosperity of the community by which it is established, he wrote, while the rights of private property are sacredly guarded. We must not forget that the Community Also had rights, and the happiness and wellbeing of every citizen depends on their faithful preservation. In 1877, chief justice wade expressed the same sentiment for the majority in munn v. Illinois. Observing that under the police power, the government regulates the conduct of its citizens one towards another and the manner in which he shall use his property when such regulation becomes necessary for the public good. Part of this tradition of the rights of the community and popular sovereignty was an understanding that private individuals and businesses can be every bit as much a threat to liberty as government. Especially when those private individuals and businesses wield Enormous Economic power. Lochners liberty of contract doctrine lasted until 1937, when it was rejected in west coast hotel v. Parish. Then writing for the majority, the chief justice returned to the old tradition that recognized the authority of the states to use their police power to balance Property Rights with the rights of the community or the public good. Use noted that a wide field of discretion to protect the health and states had a wide field of discretion to protect the health and safety of the public, but he also emphasized that the police power included promoting the peace and good order through regulations designed to insure wholesome conditions of work and freedom from oppression. The chief justice then concluded, the exploitation of a class of workers who are in an unequal bargaining position with respect to Bargaining Power and are thus defenseless against the denial of a living wage is not only detrimental to their health and wellbeing, but casts a direct burden of support on the community. I begin by observing that politicians, judges, and constitutional scholars still tend to rank lochner along with dred scott among the worst decisions in history. In my estimation, lochner deserves its reputation. Because it rejected or manipulated the common understanding of the relationship between liberty and economic regulation that was predominant in the american constitutional tradition before 1890. The constitutional tradition on which it was based existed more in theory than in practice. And it failed to recognize and appreciate the realities and actual conditions of america and the newly industrialized economy. Thank you. Now to professor barnett. Thank you, victoria. Thank you, paul. Thank you, Justice Breyer for that introduction. Thank you all for coming today. I agree with paul that we do agree about quite a bit. There is a lot, however, we disagree about. The question is how do we adjudicate such a disagreement in front of an audience. How do we establish who is right and wrong . Let me just disagree with one thing of the many things that paul just said. Let me disagree with one thing. He said lochner represented, it was part of an era in which there was supposedly a belief and a right to be free from government regulation. Thats what makes lochner so evil, because it stands for the proposition there is a right to be free from government regulation, and i can prove that this is false. That this claim that there was a belief in a right to be free of government regulation, and my evidence for this, i would rely on a case to support this proposition, and the case that i would rely on is the case of lochner v. New york. The case that were discussing today. Now, why do i say that . Because the statute that was at issue in lochner v. New york was called the bake shop act. And the bake shop act was an extensive regulation of the health and safety of the operation of bake shops. And it was passed to address the conditions the professor kens rightfully pointed out about what tenement bake shops were like. Not all bake shops were like this, but there were tenement bake shops like this. This was an extensive regulation. It includes regulated the heights of ceilings, regulated the composition of floors, regulating how often it should be whitewashed, where people could sleep relative to the ovens, regulating the wash facilities, the animals present on the premises. Cats only. You imagine why cats are allowed. Regulated ventilation. An extensive body of regulations. If you want an easy place to identify the text of the statute, you want to find the text of the statute without having to search too hard, all you have to do is read the majority opinion in lochner because they cite, they reproduce the text of the bake shop act. And the reason why i can establish that it was not this case that anyone claimed that there was a right to be free from government regulation is that no one questioned the constitutionality of the bake shop act as an exercise of police power of the state of new york. Nobody. Including the majority of the Supreme Court in the lochner case, including justice rufus peckham, who cited the opinion, cited the entire act as an example of a legitimate health and safety law. So it seems as though that since that was an extensive regulation, government set of government regulations addressing health and safety concern, its demonstrably false that if anyone thought there should be no regulation of the economy or economic activities, it certainly was not the Supreme Court in the lochner case. At issue in the lochner case was a single provision of the bake shop act, which was actually located in the labor law provision section of the new york statutes, and that was a provision that mandated or that restricted the working hours of people who worked in the bake shop, not by the way of the owners who were sole proprietors. Th they could work as long as they like, but the employees were limited to 60 hours and could not work more than that. There was one provision that was invalidated. All the rest was considered completely and totally constitutional. The problem that the court had with that provision was identifying it as a health and safety regulation because they could not see a close fit between that prohibition, which was a criminal prohibition, on employing anyone for longer than that period of time in the bake shop industry as a legitimate health and safety law. And in reaching that conclusion, the court relied on an extensive appendix that was filed which cited general statistics about the health and safety of the baking industry and the court cited that as part or based its opinion in part on that, those empirical studies cited in the brief challenging the statute. Given that, how did lochner assume the case . And i do agree with professor kens that lochner is considered to be a terrible case and a case that sometimes ranked up with dred scott. How did that come to pass . So this is a question of constitutional narrative. And one of the things that i teach my students when i teach constitutional law is that the practice of constitutional law isnt done the way, for example, i also teach contract law. It isnt done exactly the way contract law is done. With contract law, you learn the body of doctrine, the doctrine of consideration, the statute of frauds, you apply that doctrine to facts. Constitutional law can be practiced by that, but by and large, its not. Constitutional law is largely practiced by whats called the canonical cases and the anticanonical cases. The canonical cases are the ones that everyone agrees are rightly decided and need to be upheld, and the anticanonical cases are seen as evil and wrong. If youre convinced its going to lead to undermining one of the canonical cases, theyre in trouble, or if it leads to endorsing one of the anticanonical cases, theyre in trouble, so everyone is trying to navigate, and that means you have to know which of the can canonical cases and what are anticunanical. Lochner is clearly in the anticanon, but when did it get there . Was it there when it was decided . When it was decided, it was a pretty mundane case. It did make the newspapers, thats true, but the newspapers by and large editorialized in favor of the lochner case. The New York Times did. The Washington Post did. The Los Angeles Times did. Edt this case. But the General Press did. It was not considered to be particularly an unpopular case at the time. The person who made it sort of a Citizens United of the day, shall we say, was none other than republican Theodore Roosevelt, progressive republican Theodore Roosevelt. Roosevelt served as president , and then he was out of office for a term. And then he wanted he sought the nomination of the Republican Party again in 1912. And as he ran for office, one of the planks on which he ran was condemning the interference of the Supreme Court with progressive era legislation. And he gave a very famous address, a very well attended address, covered on the front page of the New York Times in carnegie hall, in which he lambasted the Supreme Court and he lambasted what he called the bake shop case, thats what it was called, the bake shop case. Cases used to be called by their generic names like the lottery case and the slaughterhouse case. It would be nice if we would do that again. The health care case, we could call it, but we dont do it. Contraceptive cases but now we have to memorize these names. He extolled the virtues of his favorite justice, who he put on the court, and that was oliver we Wendell Holmes jr. , so thats what made the case famous. He was denied the republican nomination. He then moved to a third party, this may sound somewhat familiar in todays political climate. It was called the progressive party. He helped form a new third party called the progressive party. He ran for that partys nomination, got it, and he ran as the Third Party Candidate under a party that we call the bool moo bull moose party. It split the republican vote and allowed progressive Woodrow Wilson to become president. That was lochners first appearance on the stage. You would think at that point, it had been famous. It was going to be a famous thing from now on, but it went into obscurity after that. Wasnt much known about, much talked about. There was a debate about the role of courts, and it made him one of the champions of the progressi progressives. Arguing that the courts had no business interfering with the policy making that was being done at the state and federal level, so the call for judicial self restraint became a clarion call, and holmes was the champion of that in the lochner his lochner dissent and other cases as well. And so matters stood with lochner being relatively unknown until i guess we take a brief interlude, because once the Supreme Court was almost entirely appointed by progressive president s, and we have a progressive president in Theodore Roosevelt and then in Woodrow Wilson, and then herbert hoover, and finally, franklin roosevelt. There were four progressive president s appointing justices. The court became progressively progressive. Something happened that caused some of the justices to rethink their views. And the something that happened was the republicans took control of congress in 1946. And once the republicans took control of congress in 1946, the idea of judicial restraint started not to seem like such a wonderful idea anymore. So that the idea that no matter what congress would do, we would defer to it, some of the justices started to have second thoughts about this. And a very, very interesting article was written in Fortune Magazine about this development by a historian named Arthur Schlesinger jr. Who was a very famous new deal progressive historian. Harvard man, good harvard man. He writes the story, and he divides the court up into two contending groups. The first group he calls the lions of self restraint. And they are people like Felix Frankfurter and others. The other group he calls judicial activists. The first time we know that the term judicial activism was used was in this article. He said they were associated with the yale law school, and the legal realism of the yale law school. This was in the article. I highly recommend it to you. In there he says that what the yale people had decided is they were starting to reconsider this restraint idea. It turns out, they said, the problem before wasnt the judges were acting politically and getting in the way of popular legislation. We were kind of off base on that. The problem is they said it is inevitable that judges would act politically. The question is what would they be acting politically for . The problem in the old court was they were acting politically for the wrong things like economic liberty. And not for the right things, like social justice and other sorts of things. So you had this split. Now, he did associate one side of the court with the yale law school. He didnt associate the other side with the harvard law school, though he might have. Still, though, lochner doesnt play a role. We do now have a split on the Supreme Court, between new good deal judges. We have new deal conservative restraint judges, the post new deal warren court activist judges. Theyre fighting amongst themselves on the court, and that brings us to the 1960s and the case of griswold v. Connecticut. Its decided, and what does griswold do . It protects an unenumerated right of privacy, in this case, to use and not only use, but to pesz, and not only to possess, but to sell contraceptives, and the question is, what gave the court the power to invalidate a connecticut law to possess and use cont receptives. And the answer that Justice Douglass gave, a good yale man, the answer that Justice Douglass gave was that it was the right of privacy, and he relied on lochner era cases like meyer v. Nebraska and pearce v. Society of sisters in making that case. Thee were cases that were decided on freedom of contract grounds, by the lochner, and cited they themselves relied on the lochner case. At some point, the challenge was raised to him of doesnt this give rise to this economic liberty case . Like this lochner thing . And at first, actually during oral argument, the court wasnt quite sure what the lochner case was. They thought it had to do with the size of bread. Wasnt that the case about bread and what size bread should be . And they were not quite sure what the lochner case was. Turns out there was a case like that, but it wasnt lochner. They decided the griswold case. Again, lochner hasnt played a huge role. Where does it come from . Its mentioned in the court now, because the justice says were not going to take the road that was urged upon us to do Something Like lochner. Now Justice Douglass mentioned lochner. Then where it really comes to play in is gerald guenthers case book, which is published in 1970, and look how recent we are, puts lochner in the case book. And pairs it with griswold as a way of questioning whether what the court is up to is really any different than what it used to do, and then, in 1975, comes the new edition of guenthers case book. Now its solo authored by guenther. Comes out in 1975. And roe is decided. What happens between 1970 and 1975 is roe v. Wade is decided. Now, Jerry Guenther, he expands the lochner section into a whole chapter of the book. It starts with lochner, then it goes through griswold, and then it goes to roe. Then he calls this the lochner era. And before 1970, i think there was only one reference, like in 1969, to anybody even referring to the lochner era as an era, but he calls it the lochner era. In 1975, he has this big thing, i think the title of the chapter was substanditive process, rise decline, revival. So he was doing that. I happen to be a law student in 1975. And i took a constitutional law from larry tribe. I used the first edition, i used the 1975 ninth edition of guenther, so i read this chapter as a law student and i read the whole thing and thought wow, this is interesting. I really love the lochner case. This is great. Maybe that means that, you know, roe and griswold are okay because lochner is okay, so maybe griswold is okay. Actually, i think the sociology was backwards, and that is because a lot of people liked roe and a lot of people liked griswold, when you put lochner up against it, and you say look what theyre doing is the same thing as lochner, i think this caused people to rethink lochner. Even though lochner was still objectionable, it wasnt for the same reason. It used to be thought to be objectionable because judges were interfering with the political process. Now, thats not why its objecti objectionable. When larry tribe published the first treatise, he has a whole chapter on lochner, and he says the problem with lochner was not that they got the role of judges wrong. The problem with lochner is they were protecting the wrong right. Freedom of contract was not a right that they should be protecting. Okay. So now, lochner is it used to be very, very bad. And now its only very bad. It used to be the wrong right and the wrong role. Now its the right role but the wrong right. And heres the last part of my story. I have a lot more to say why i think lochner was a reasonable decision at the time, but ill close with one anecdote that i have personal knowledge of. One of my earliest articles on constitutional law was sort of telling the story about how it was thanks to Jerry Guenther and his case book that lochner actually started to get a somewhat better reputation. You had scholars saying nice things about lochner. While he was criticizing it, it wasnt so terrible as it used to be. I credited guenther with having elevated the stature of lochner because of the way he juxtaposed griswold and roe and lochner. And i got a handwritten note which unfortunately i cannot find, so youll have to take my word for it. I cant produce the note, but i got a handwritten note from Jerry Guenther expressing his shock and dismay that his case book could possibly have the effect that i described. Because his whole purpose of putting these together was to undermine roe and to undermine griswold, the opposite of what he wanted to do was actually elevate lochner, yet it may have been a case of unintended consequences, so lochner has gone from being very, very bad in the minds of some to only being very bad, and the future rounds well discuss whether thats a justified treatment of lochner. Thank you, randy. I want to press you both a little bit oh. [ applause ] that was an incredible course in constitutional law. I dont get to take my colleagues courses, so that was great. I have spent a little bit of time myself with the period, and i have to say that i want to press you both on the concept of right that youre using. Because its my feeling that when you go back into 1905 and you look at the concept of rights, that it looks so much different. We didnt have the idea of substantive due process at the time. I think you both would agree with that, as ted white famously has written. And when i looked at the average case, not the important case like lochner, i found dozens and dozens of statements like this that challenge the contemporary equation of lochner with the notion of right that might be in more contemporary cases as suggested by guenther. You are comparing in essence apples and oranges. Heres just one quote which will seem strange to the audience and ill let them both respond for five or ten minutes. This is a case called manigault v. Springs. It involves a dam. But it simply says the police power, which was the core concept of constitutional law at the time, and i think my panelists would agree, is an exercise of the sovereign right of the government, notice right of the government, to protect the laws, health, morals, comfort, and general welfare of the people and is paramount to any right under contract between individuals. Did we have a strong contract right at the time of 1905 . Is it correct to compare that strong right with strong rights that we have seen postnew deal . Well, let me answer that first. And part of my answer would be a little bit of a response to randy, because it falls right into that area. Randy is very convincing about lochner not being unimportant in its time and also being a favorable case. But his description kind of glosses over some key things, and these are the rights. Before i get to the rights, let me point out that the bake shop, the reason that only one provision of the bake shop act was decided by the court was because thats the only part of the bake shop act that was before the court. Lochner was convicted of a crime for violating the longer hours the shorter hours provision of the bake shop act. The part randy glosses over has to do with rights. You know, the police power is not defined anywhere in the constitution. In fact, the police power, i would say, isnt defined anywhere. If you look at the old constitutional treatises, they would say the police power is all the power thats reserved to the states. Its sovereign, its not defined. What randy glosses over is he keeps talking about health and safety. The police power goes way beyond health and safety, and as victoria pointed out, it goes to protecting, you say the right of the government, but actually i have seen the duty of the government to protect the general welfare. So one thing is that we have glossed over the notion of police power. The second thing that randy glosses over in his description is the burden of proof. Or what he would call the presumption. And that presumption up to lochner, and even really kind of including lochner, because one judge who decided, and thats harlin, was strongly in favor of the legislation and strongly in favor of the say. The way justice harlen in his dissent in lochner put it, the constitution the statute cannot be overruled unless its plainly and palpably beyond all question in violation of the constitution. For that reason, he would not have overruled the shorter hours provision of the bake shop law. So i think these two concepts kind of fit right into your story. And i think that if we look backwards, i think one of the differences between randy and i is i always am looking backwards where hes looking forwards about this case, not always, but in this particular instance. If you look backwards, that notion of police power was even stronger, i think, than the period between lochner and lets say west coast hotel v. Parish. This is an area in which we actually agree quite a bit. And that, one of the reasons why lochner has been misinterpreted, and paul, i think, does not do this and didnt do it just now, is by reading back into lochner what is the way we do substantive due process today. The way substantive due process is done today is that you basically have essentially an irrebuttable presumption of constitutionality, the approach to rational basis test, which is only does not apply if you have what the court identifies as a fundamental right. If you do have a fundamental right of which there are only a limited number, then it gets what you might call super duper protection. Strict scrutiny or Something Like strict scrutiny and very few statutes are supposed to survive this. You either have no protection of liberty or you have great protection of liberty, the particular liberty, so you have to keep the number of liberties to be protected relatively small because if you dont, its going to overwhelm all government, and that we know cant also be right. So what happens is you thats the way substantive due process is done now, and you look back at this case and say, well, what they did is they just erect they elevated freedom of contract to the status of fundamental rights like we would do to privacy today, and they were just wrong to do so, but thats not what they did. Its not what paul said they did, and i think paul is exactly right. This was a Police Powers case. Vic is right, also. This is a Police Powers case. The premium was not placed on right. Not much time was ever spent identifying the right, justifying the right like we do today. The premium is all placed on the exercise of the police power. Its not what rights we have. Its whats the appropriate scope of the police power thats at issue. And paul is right. There are narrower scopes of the police power and there are broader scopes of the police power. Thats what it debate was about. Thats what the debate was about starting in 1868 when the 14th amendment gets enacted and for the first time the federal government has jurisdiction, the federal government of congress and the courts have jurisdictions over state laws they never had before. And prior to that, the unenumerated power of the police power, which by the way, is an unenumerated power. Paul is right. Its not mentioned in the constitution. If you dont like unenumerated stuff, there should be no police power, but of course, everybody agrees there is a police power, notwithstanding the fact its not enumerated anywhere. The question is what is the proper scope of this unen unenumerated power. We can rule out one of the answers to that question, and that is that police power is unlimited. Its something. Its everything. Its whatever a majority in the legislature decides to do is within the proper scope of the police power. I think that would be a very ahistorical view of the police power. We really cannot adjudicate now, at least at this moment, exactly what the contours of the police power is, other than im freely admitted it was contesting, but i cant identify the standard both used in lochner and other cases at the time and prior, and that is and i will identify the standard, and i will explain why its the standard. The standard is that the police power cannot be used to enact an irrational or arbitrary. That was the standard. An irrational standard is a standard where your liberty is being restricted, supposedly to pursue some particular end, but the fit between the purpose and the means, the end and the means, is so loose that we suspect that perhaps thats not the reason why the law is being passed. Without maybe going into what the motives were directly, we can suspect perhaps bad motives might be in play. Improper motives might be in play to help out some at the expense of others, which was not thought to be within the police power of the state. Taking from a to give to b was outside the police power of the state, going all the way back to calder v. Bull. The other standard is arbitra arbitrarine arbitrariness. And it was treating some people differently than others without a good reason. And that would prohibit a certain kind of discriminatory treatment, and the question in facing lochner without giving to what the answer was, and its conceivable that lochner was wrongly decided on its facts without doing something wrong in terms of what it was doing in principle. I dont concede that, but one could concede that and still say this was irrational law because the fit between the hours that bakers worked and Public Health and safety just wasnt there. There just and particularly as applied to other occupations where people work long hours and which were also hazardous. There was not enough fit between means and ends so that law could be criticized as irrational and also criticized as arbitrary was why single bakers out the w . Why do bakers get this special treatment, so to speak, and other dont . What makes bakers different than others . And if you read the opinion in the lochner case, the reasoning is all about rationality and arbitrariness. That is the historic standard. That is the outer boundaries of the police power. Let me close by saying why would that be the outer boundaries of the police power . Why would that be it may not be the only boundary, but why would that be one of the outer boundaries of the police power . Because we supposedly live in a country in which there is the consent of the governed and yet government exists that can claim the consent of the governed only tacitly because theres never any expressed consent to the government, maybe by a few, but not by everybody. So then the question is, can you be presumed, can the individual citizen who has rights, the preexisting rights we can talk about shortly, be presumed to have given to the legislature, to a majority in the legislature, which is just a body of individual citizens, the power to restrict their liberties arbitrarily and irrationally . And the argument is that that cannot be presumed. Maybe somebody could consent to it if you asked them to, although i think paul would think that contract was unconscionable. But they certainly cant be presumed. No one can be presumed to consent to the legislature a power to restrict their liberties arbitrarily or irrationally. The issue of the facts of lochner was this such a law, and thats what the court decided. That, randy, as i said it, is not the position that the liberty of contract reigned, which has been the traditional story told by many who wanted to rehabilitate it, such as richard epstein. I think historians generally agree the police power had a very prominent effect, as these scholars have been suggesting. One thing i want to ask you both while i have you is whether there isnt a third way between a strong liberty of contract view and a view that in fact there was no regulation of business, et cetera, because clearly, they did regulate business through police power, liberty of contract was not the only claim in meyer and pearce. Maybe there was a small explanation, which is there was labor exceptionalism. It was associated with socialism, with tearism, with violence, and it was this labor exceptionalism that was so crucial to the future of the new deal. And that yes, the future can make our ideas of cases different as randys fine expluication showed us. But the real key here was something smaller, it wasnt large ideas of liberty of contract, which were in fact rather small, or large ideas of no economic regulation because we did get economic regulation in the progressive era, but rather than labor was singled out in this decision for disfavorable treatment as it was in so many other ways in an era where we put labor leaders in jail because of their use of speech. Well, i like that idea. I appreciate this notion of labor exceptionalism, but i see a couple problems with it. The first problem with it is that if there was labor exceptionalism, it didnt show in this new york legislature. This was a legislature that was very business oriented, yet the statute that was enacted in the shorter Hours Movement, voted in the two houses of the legislature 1200. And not only did it vote 1200, but it did it twice because the original bill had in it the provision read no person could work in a bakery for more than ten hours. The governors lawyer was worried that was unconstitutional and changed it to no employee, and it went back to the legislature and was voted again. Even 11 of the 21 judges who voted on lochner voted in favor of the legislation. If you take all the new york judges that voted on lochner. So only one judge made this decision. And that was one of the complaints against lochner. And i want to say a couple things. One is about the police power. There was an outer limit to the police power before lochner. It comes out of the old contract clause cases involving mostly businesses that received charters and grants and special privileges from the government. And what it said is that the police power was not it was extensive but not unlimited. And what the limit was that the state could not deprive a corporation of its property. It couldnt confiscate its property or deprive the corporation of the essential objects of its grant. That changed after the enactment of a real subtle change after the enactment of the 14ith amendment, and it comes in the granger cases. Both the ones that involve the contract claus and munn v. Illinois that didnt that involved a partnership. What the lawyers for these entities, for these business entities, tried to do is they tried to argue that regulation equaled it was confiscation. That any interference with a a businesss ability to do what they wanted with their property constituted confiscation. So that was the old limit on the police power. And it was consciously changed. Im right now working on a book on munn v. Illinois and i have also just finished a book on the wake court, and i have kind of tracked this change. It was a very it didnt happen immediately after munn v. Illinois, but it was a conscious change on the part of a series of lawyers. It wasnt a conspiracy. It wasnt organized, but it was conscious. An effort to change this idea of what the limit of the police power was from confiscation to actually confiscation, regulation equals confiscation. The other thing about the thing i do think youre right about, victoria, is that i hadnt thought about this until you mentioned it to me a little earlier, is when i read all the arguments about these cases from the slaughterhouse cases until lochner and beyond, i often do see the limited police power along with the words communism or the words eternalism. I think theres something to that if you read the old cases but i dont think it was generally manifested everywhere. I think it was probably unique well, i shouldnt say this, i dont know it, but it seems if anything it was unique to the judiciary. With respect to arbitrary and irrational, one of the things is a court can be arbitrary and irrational too. You could argue that the lochner decision was arbitrary and irrational. It was arbitrary because other kinds of businesses were already given shorter hours and they were upheld by the court. It was irrational because it was unique. It changed the way we have looked at business in fact, if you were living at the day, you would have predicted that the attorneys challenging lochner would have lost. So i think you have to keep in mind if were going to talk about arbitrary and irrational, every branch of government has that same potential. Randy. Then well have two minutes. I think i would be remiss if i didnt recommend two books for people to read who are interested in the lochner case. And the first book i would recommend is this book called lochner v. New york, economic regulations on trial. And that was written by paul kens, who is my copanelist here, and he graciously signed it over to me as we did our cspan program. I appreciate that. The second book i would recommend is a book by David Bernstein of George Mason Law School called rehabilitating lochner, defending individual rights against progressive reform. I would recommend this book as well. If you read this book, youre going to get a somewhat different take on the facts of what was happening in the bake shop trade than you have heard so far. For one thing, you havent heard anything about the difference between the bake shop companies, the large Bakery Companies who actually were not necessarily working their workers longer hours. They could use shift workers, for example, because they had enough workers to work around the clock. Baking does involve a certain amount of round the clock tending of the ovens. If you have many employees, its easy to work them in shifts to handle that. If you have a very, very small bake shop, a solo bake shop, its harder to do that. At that point, employees have to stay longer. They have to sleep somewhere nearby to get up and tend the ovens. This was a law that at the time it was quite consciously and quite publicly known to be aimed at a particular subset of the bake shop industry, and that was the bake shops that were in the tenements and they were basically run by the italians and the jews. These are the italian bake shops and jewish bake shops. They were the ones at whom this particular law was aimed. This wasnt particularly and the group that lobbied in favor of this law was not so much the bake shop the big baking companies, although they also didnt object to it, theres a reason why tammany didnt object to the law, tammany hall, which was in power, a reason why businesses didnt object to this law, because they werent harmed by the law. The people harmed by the law were a very small set of people, and they were accused of having extremely filthy and dirty and horrible conditions, which would have been addressed, and some of them would have been been put out of business by regulations not challenged in the case, but they were the ones at whom this law was aimed, and getting back to victorias point about labor labor. It is not labor per se. It is labor unions. That is what you meant to say. That is what you actually meant. Yes. But labor sounds liking it everybody. But it is labor unions and the progressives were part of a very strong unionist movement, unions didnt represent everybody. They represented themselves. And particularly they didnt represent africanamericans. They were generally racially exclusionary. They did not represent women. They were white, maledominated unions and that is who progresses promoted and who promoted this particular legislation. So at that time there was skepticism about unions. There was skepticismed by africanamericans about unions because they were so dominated by white and males and there was skepticism by businesses about union and skepticism about other people and the constitutional hook on which this skepticism was grounded was the notion that it wasnt within the police power to favor some subset of the population over others. It was a general interest law, a law for the common good had to be about everybody. And if you just had a law that favored this group, which is like one half of a contractual deal, which is the labor unions, over this group which is management or capital, that is an improper use of the police power because it is siding with one over the other and the police power is for everybodys benefit. I do know this concept of the police power, this limited concept was on the one hand very prevalent and then came under challenge. And it came under challenge under the theory that the everybody is benefited from helping labor out because of conditions and working. There is a whole long story to tell about were all better off because there are labor unions and that was how they brought this distinction under the police power Juris Prudence into question. But the original idea was it is not the proper role of the legislature to side with one side of a dispute over another side of a dispute, that would make this an arbitrary law and this was the other motives that the Lochner Court, that Justice Peckham said one had to suspect might have accounted for the law being enacted given the lack of fit for health and safety and given the fact there was no reason to single bakers out as opposed to other works who worked in bad conditions. So given a lack of a police power we might suspect other motives and the other motives were siding with labor unions over capital or management and that was something that was thought to be by some beyond the police power. Well, with respect to the law and the passage of the law, the entity or the group that provides the clout, labor unions in 1895 had no power whatsoever. They were small and dysfunctional. In new york they were split into three separate groups. They didnt have a lobbyist in albany. The group that provided the clout is what i call mainstream reformers. These were people, they were an elite and an elite primarily in new york city and primarily concerned with things like cleaning up government, cleaning up tammani hall and cleaning up the slums and ameliorating the conditions of People Living in the slums and conditions of employment. And what i found after reading the statements was that they were concerned about the two extremes that were kind of posing being created in American Government and this fits again with your position, victoria, they were worried that a extreme on what would be called a right and extreme on the left would cause a turmoil that would break down American Government. And the only way so solve the problems of American Government was to find some middle reform, some middle of a reform. And now i appreciate very much randy mentioning my book. And a long with David Bernsteins book, but i have two things in the pitch for myself. If you were going to read those two books you ought to read my review of bernstein. Because it is unfair. He wrote his book 20 years after mine. So i had a shot back at him in a review. The other thing, if you were really interested in that subject, i think i ought to tell you that the book that youll see in the gift store is not it is part of a series that doesnt allow foet footnotes but i wrote it as a hard back books and those are in the hard back book if you want to trace my research. Thanks a lot. Is there anything else you would like to say professor. Is this our closing. This is our closing. Okay. Does paul get another closing. Lets close with you because professor began. Thank you very much again. There is a lot of mythology about the Lochner Court. We didnt get into for example the mythology that comes about as a result of Justice Holmes invocation and then many have associated this with a condemnation of social darwinism when, in fact, spencer was not a social darwinist of any kind and he did believe in evolution. And stoeshl static was a famous book that argued for the law of equal freedom, that is everybody should be free to do what they will, provided it does not infringe on the equal freedoms of other people. And actually i just brought along my copy of social statics here and it is just so you could see it. It is a very good book. It is a whole chapter on the rights of women and children. He was ahead of time when it came to those sort of rights. But the idea of law of equal freedom, inherently brings up the subject of reasonable regulation. Because if, in fact, if they dont impend on the like freedom of other people that calls for the regulation of liberty. In fact as a contracts professor, speaking of contracts, the body of contract law is a regulation on the making of contracts. What constitutes a contract and when could they be made and enforced and regulation goes back many, many years, centuries perhaps and something that libertarians dont object to. The issue is whether the regulation of liberty is reasonable. And that is not an easy question to answer. And make the Lochner Court answered it wrongly. I dont think they did. But maybe they did. But i dont think the question they were asking was the wrong question to ask and i any they would be better off if instead of trying to rely on judges, to identify which liberties that we have are fundamental and they get super duper protection and the liberty that judges dont think are fundamental get no protection at all, we could do a lot worse than following the prenew deal approach to the Police Powers which is to say of course liberty may be regulated for the common good but now you need to come up with a theory of what that means and then you need to hold legislatures within their proper powers. The declaration of independence said were each endowed with unalienable rights to life and liberty and the pursuit after happiness and to secure these rights, it is to secure these rights that governments are instituted among men deriving just powers, not all pours, and that is what the lochner kacases about. What is the just spoke that the power the government has to regulate our liberty to protect the equal liberties of each and every one of us. Thank you. [ applause ] thank you, both for a wonderful discussion. I want so that i thank you. And it is professor nurse. And this happens. So i mispronounced your name. But that was fabulous, thank you very much. [ applause ] cspan has unfiltered coverage of congress, the white house and Supreme Court and Public Policy events. You could watch all of cspan Public Affairs programming on television, online or listen on our free radio app and be part of the conversation through our daily washington journal program. Cspan created by americas Cable Television companies as a Public Service and brought to you today by your television provider. Sunday night on q a, the american conservative executive director and acting editor john burqa on the special edition of the magazine. There is a lot going on in our country right now and it is unsettling times for a number of americans. Everything having to do with the covid crisis to the lockdowns to the killing of george floyd and the subsequent protests androts and the president ial election. So a lot of people are taking the opportunity to really reexamine first principals and figure out where we stand as a nation. Watch sunday night at 8 00 p. M. Eastern on cspans q a. Now we take you live to a house ways and means subcommittee hearing examining the Coronavirus Impact on social security. This is live coverage on cspan3. Sally greenberg testified before congress this month about scams consumers are facing during the coronavirus pandemic. Shes the executive director of the National Consumers league. Joining us via zoom this morning. Sally greenberg, explain first what the ncl is and how you track consumer scams. Sure. Good morning, john. The National Consumers league is an organization around since 1899 and were the Premier Group to fight for consumers and workers in the United States and abroad. And we have a special interest and focus on fraud. Weve got the urlfraud. Org and we get a lot of complaints about fraud of all kinds and we share those with Law Enforcement and members of public and we do a weekly and monthly fraud report. So that gives you background about what we do. Nclnet. Org is the website. You testified before congress this month that the coronavirus opened the door for a tsunami of scams and fraud. How do we have a sense of how many people hit . Do we know how many people have been targeted since midmarch . Yes, indeed. Well, fraudsters are very, very good at swooping in in situations of hurricanes, tornados, floods, National Disasters and this pandemic definitely falls into that category. So what we found is that there is a whole new range of fraud and efforts to scam consumers going on within the organized group of people who are and there are substantial numbers of by the millions of fraudsters in the United States and in many countries around the world who perpetrate fraud on innocent consumers and what we found is that this pandemic is a fertile landscape for fraudsters. It is since the beginning of 2020, for example, the federal trade commission has received more than 120,000 complaints about Identity Theft, scams and other kinds of fraud linked to covid19. And of the complaints, nearly half indicated a monetary loss of 78 million. In april alone we have some of the private cites that are not government cites like google and some of the other places where all of us go every single day to find information. Google announced that it was tracking in april alone more than 18 million malware and phishing scams, all scams sent to consumers hoping that youll sign up or give some private information and theyre tracking 18 million of those aday. So it gives you some sense of the magnitude of the fraud that is out there. The other very open opportunity for fraudsters was the unemployment checks that were sent. 600 a week to millions of millions of americans. 40 million americans have applied for unemployment. Well that just opens the door for Identity Theft for fraudsters. So the estimates are that under the cares act that many millions of dollars, the department of labor said it could be as much as 26 billion has been stolen through Identity Theft and stealing checks and stealing them from consumers and workers and really depending on the checks, but, boom, they sign up and it is gone. If they put in all of your identity come to order. I want to welcome allf
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